Tuesday, December 21, 2010

Last year, Budapest resident Anna Ternovszky was looking forward to giving birth to her second child at home. Like elsewhere in the world, Hungarian women can be discouraged by the unfriendly sterility of hospitals and like the idea of their children arriving into a warm, welcoming home environment instead.

Ms. Ternovszky soon realized, however, that in Hungary a hospital birth was her only option as any doctor who would have assisted her with home birth risked facing criminal charges. She turned to the European Court of Human Rights in Strasbourg, which last week ruled that Hungarian women must be allowed to give birth at home if they choose to....

In its ruling, the Strasbourg court said that the Hungarian state was violating the right to respect private life guaranteed by the European Convention on Human Rights. This right encompasses the right to choose the circumstances of giving birth, the court said.

A basic human right in the rest of central and eastern Europe, home birth is thus getting the green light in Hungary. Hungarian legislation seems to be catching up: the Ministry of National Resources — and the state secretary responsible for health issues within the ministry — prepared and published Monday a long-awaited set of draft regulations for births outside health institutions.

Today, the European Court of Human Rights in Strasbourg handed down a judgment in which it holds that the Hungarian state has violated the “right to respect for private life” guaranteed by the European Convention on Human Rights.

Exactly one year ago today, a pregnant Hungarian woman applied to the European Court of Human Rights. In her claim, the complainant alleged that the Hungarian state had violated her right to the respect of her private life by threatening midwives with sanctions and thus effectively preventing her from choosing to give birth at home. The complainant was represented by the HCLU’s attorney, Dr. Tamás Fazekas.

In its decision announced on 14 December 2010, the Court, in a decision of 6 against 1, held that the failure of the Hungarian state to regulate the issue results in a violation of the right to privacy guaranteed by Article 8 of the European Convention on Human Rights. A joint concurring judgment was submitted by Judges Sajó and Tulkens, while Judge Popovic wrote a dissenting opinion.

(1) The Court held that the right to respect for private life includes the right to choose the circumstances of birth.

(2) The Judges argued that the section of the Government Decree that imposes fines on midwives assisting at home births constitutes an interference in the exercise of the rights of the complainant and of similarly situated pregnant mothers.

(3) According to the Court’s opinion, the threat of sanctions – along with the absence of a specialised, comprehensive regulation in this area – are detrimental to the complainant’s ability to choose home birth. This in turn constitutes a violation of the legal security for the exercise of privacy rights, and in particular, violates the principle of legal certainty.

“We find this judgment to be very important”, stated Dr. Tamás Fazekas, attorney for HCLU, “because this means that, so long as Hungary fails to enact legislation regulating home birth, and so long as professionals assisting at out-of-institution births are unable to obtain a license for their work, Hungary is in violation of the European Convention on Human Rights”.

The European court of Human Rights does have jurisdiction: their ruling forces the member state to enact legislation to comply with the ruling.Ireland was also given a judgement by the ECHR recently: this one forces the state to legislate for abortion in limited circumstances (something it should have done 17 years ago). http://www.irishtimes.com/newspaper/breaking/2010/1216/breaking11.htmlHome birth here is still under threat, though.